Citation Nr: 1801937 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-22 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in VHA CO THE ISSUE Entitlement to clothing allowance for the year 2014. (The issues of entitlement to a higher rating for chronic low back strain and entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan are the subject of separate Board decisions with different docket numbers.) ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision dated in November 2014 of the Department of Veterans Affairs (VA). In September 2015 a decision review officer hearing was held. By way of history, the Veteran filed a claim for a clothing allowance dated in November 2013 that was received in July 2014 due to his right wrist brace, left wrist brace, and Thera-Gesic cream that he used for his wrists. In the September 2015 notice of disagreement, the Veteran stated that he would file a complaint for not receiving his annual clothing allowance for the knees and acknowledged the matter of whether his claim is static or nonstatic is a new and separate issue. As these matters are not part of the Veteran's clothing allowance claim for the year 2014 due to his wrists, which is currently before the Board, they are hereby referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Veteran in September 2017 indicated that the Board was reviewing his clothing allowance for 2015 and 2016; however, an appeal has been perfected only regarding the issue of entitlement to clothing allowance for the year 2014. Thus, the Board also refers this matter to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence is at least in relative equipoise with respect to whether braces the Veteran wears for his service-connected right and left wrist disabilities tend to wear or tear his clothing. 2. Though the Veteran uses a cream to treat his service-connected bilateral wrist disability, this cream is not prescribed to treat a skin condition that is due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a clothing allowance for the year 2014 due to a right wrist brace and left wrist brace are met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R §§ 3.102, 3.810 (2017). 2. The criteria for a clothing allowance for the year 2014 due to cream used to treat a service-connected wrist disability are not met. 38 U.S.C. §§ 1162, 5107 (2012); 38 C.F.R §§ 3.102, 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (b). Here, the Veteran's claim is being granted in part and denied in part. There is no possibility of prejudice to the Veteran with respect to the claim being granted. As to the portion of the claim being denied, that particular part is being denied as a matter of law. Under VA law and regulation, the notification and assistance provisions need not be considered when the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also 38 C.F.R. § 3.159 (b)(3)(ii) (notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established), and 38 C.F.R § 3.159 (d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). Accordingly, there is no indication that any additional notice or development would aid the Veteran in substantiating his claim, and any deficiency of notice or of the duty to assist constitutes harmless error. In July 2014 the Veteran's claim for clothing allowance was received, which was dated November 2013, due to his right wrist brace, left wrist brace, and Thera-Gesic cream for his wrists. The Veteran's claim was denied in part because it was determined that the braces did not damage clothing because they were not rigid. Clothing allowance also was denied because the topical medication was not used in conjunction with a service-connected skin condition. The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin condition which is due to a service-connected disability and VA determines causes irreparable damage to the Veteran's outer garments. 38 U.S.C. § 1162. A veteran who has a service-connected disability is entitled to an annual clothing allowance if (1) the disability is the loss or loss of use of a hand or foot and an examination or hospital report discloses that the Veteran wears or uses a prosthetic or orthopedic appliance which tends to wear or tear clothing because of such disability; (2) the Under Secretary for Health or such designee certifies that because of his service-connected disability a prosthetic or orthopedic appliance which tends to wear or tear clothing is worn; or (3) the Under Secretary for Health or such designee certifies that a physician-prescribed medication for a skin disability due to a service-connected disability irreparably damages the veteran's outer garments. 38 C.F.R. § 3.810(a)(1)(2)(3). In the present case, the evidence shows that the Veteran is service-connected for a right wrist disorder and left wrist disorder. Notably, he also is receiving a 70 percent rating under Diagnostic Code 5125 for loss of use of his right hand under Diagnostic Code 5125. The clinical evidence shows that the Veteran had been prescribed a brace for both the right wrist and left wrist. See, e.g., VA examinations dated in June 2009 and March 2012. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of a clothing allowance for 2014. Although the Veteran's claim was denied because his wrist braces were determined not to be rigid, the controlling regulation pertaining to clothing allowance cited above does not require that a brace be rigid or contain rigid exposed components; it is enough that it tends to cause wear and tear to clothing. 38 C.F.R. § 3.810. As the Veteran wears the braces on his wrists, and is fully aware of their effect on his clothing, he is competent to testify whether the braces result in wear and tear to his clothes. The Board finds that his affirmative statements constitute persuasive evidence in favor of his claim. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is nothing of record which diminishes his credibility in this regard. The statute and regulation provide that, when dealing with medications such as ointments or creams, clothing allowances are only warranted when that medication is for a "skin condition, which is due to a service-connected disability." 38 C.F.R. § 3.810 (a)(1)(ii)(B). Here, the Veteran used Thera-Gesic cream, which in his claim dated in November 2013 he explicitly stated was used to treat his service-connected right and left wrists. He does not contend, however, nor does the evidence show that this cream was used to treat a skin condition or that he used any other medications for a skin condition due to a service-connected disability. See, e.g., October 2015 Form 9. The Board also notes that the Veteran is not service connected for a skin disability. The Board does not doubt the Veteran's contention that the Thera-Gesic cream tends to stain his clothing. In this case, however, the Board is bound by the applicable statute and regulation limiting the grant of a clothing allowance for medication to circumstances that differ from those presented here. Accordingly, the grant of a clothing allowance for the Veteran's use of the Thera-Gesic cream must be denied as a matter of law. Lastly, the Veteran contends that he is entitled to a clothing allowance with an effective date one year prior to the enactment of the Veterans Claims Assistance Act of 2000, Public Law 106-475. However, in the instant case the Veteran's claim was dated in November 2013, received in July 2014, and addressed in the November 2014 decision as a claim for clothing allowance for the year 2014. In the September 2015 notice of disagreement the Veteran confirmed that he was appealing the decision that denied his November 2013 claim for clothing allowance for his wrists. Thus, the issue currently before the Board is limited to a clothing allowance for the year 2014. In summary, the Board concludes that the Veteran's use of wrist braces to treat his service-connected right and left wrist disabilities tends to wear and tear his clothing, and clothing allowance for 2014 must be granted due to the use of a right wrist brace and left wrist brace. (CONTINUED ON NEXT PAGE) ORDER VA clothing allowance for 2014 due to the use of a right wrist brace and left wrist brace is granted, subject to the laws and regulations governing monetary awards. VA clothing allowance for 2014 due to the use of Thera-Gesic cream to treat a service-connected bilateral wrist disability is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs